Appellate Division, Second Department
Jan 30, 2007
2007 NY Slip Op 00643
Provider prevailed
The insurer failed to establish workers' compensation coverage as a basis to permanently stay arbitration of its insured's no-fault claim. The insured's workers' compensation claim had been denied because a self-employed cab owner was not required to insure personally. The insurer argued that a cab dispatch service's base affiliation required coverage but submitted no evidence that the service employed the insured when the accident occurred. It also omitted the policy and admissible proof of a contractual violation, while expressly declining to deny coverage on that basis. The Appellate Division, Second Department, affirmed the denial of the insurer's petition.
Appellate Division, Second Department
Jan 30, 2007
2007 NY Slip Op 00642
The liability insurer validly disclaimed coverage because neither its insured nor the injured claimants forwarded the lawsuit papers. Although the insurer had received accident information and a no-fault application, it first learned of the personal-injury action upon receiving a default-judgment motion. The policy required immediate forwarding of papers served in the lawsuit. Following Argo Corp. v Greater N.Y. Mut. Ins. Co. and American Tr. Ins. Co. v Sartor, the Appellate Division, Second Department, reversed the order granting the petitioning insurer a permanent stay of uninsured-motorist arbitration under CPLR article 75. It denied the petition and dismissed the proceeding because the other vehicle was uninsured for the accident.
Appellate Division, Second Department
Jan 23, 2007
2007 NY Slip Op 00496
Insurer prevailed
An insurer may assert lack of medical necessity against a radiologist seeking assigned no-fault benefits for prescribed MRIs. The provider argued that the defense was unavailable because it performed MRIs on prescription without diagnosing patients, conducting physical examinations, or assessing necessity. Insurance Law § 5102 (a) (1) and 11 NYCRR 65-1.1 limit reimbursement to necessary expenses. An assignee acquires no greater rights than the assignor, against whom the defense was available. The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted the insurers' summary judgment motion on the availability of the defense, and denied the corresponding branch of the provider's cross motion.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50164(U)
Provider prevailed
MVAIC's 30-day period to pay or deny begins upon receipt of claim forms, without awaiting a qualified-person determination. The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment and denying MVAIC's cross motion. Under Insurance Law § 5221 (b) (3) and 11 NYCRR 65-3.8 (c), MVAIC could not postpone the deadline while determining qualification under Insurance Law § 5202 (b). It neither timely denied the claims nor proved mailing of timely verification requests. A later letter to a law firm was not verification because it demanded no response, and was not a proper denial under 11 NYCRR 65-3.8 (c) (1) because it lacked the prescribed or approved format. The unchallenged prima facie determination was not reviewed.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50163(U)
Insurer prevailed
The insurer raised a coverage issue through a founded belief of insurance fraud despite failing to prove timely denials. The record lacked personal-knowledge proof of mailing or a sufficiently detailed office mailing procedure. Failure to establish payment or denial within 30 days under 11 NYCRR 65-3.8 (c) precluded the medical-necessity, fraudulent-billing and excessive-fee defenses. The insurer could nevertheless assert that the collision furthered an insurance-fraud scheme. Its investigator's affidavit established a founded belief that the injuries did not arise from an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion, expressly leaving its unchallenged prima facie showing unreviewed.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50165(U)
Provider prevailed
The insurer's examiner affidavit failed to establish mailing of pre-claim IME notices or the assignor's alleged nonappearances. A third party scheduled the IMEs and mailed the notices; the insurer's examiner was responsible for neither function. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the insurer needed admissible proof of both mailing and nonappearance to oppose summary judgment. The affidavit supplied neither, so the insurer failed to raise a triable issue. The Appellate Term, Second Department, reversed and granted the provider's motion, remanding for statutory interest and attorney fees under Insurance Law § 5106 (a). It expressly declined to review the provider's prima facie showing because the insurer had not challenged it.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 27034
Insurer prevailed
The insurer's severance motion was granted because a single trial of claims from separate accidents risked confusion. The provider sued as assignee of five individuals injured in five accidents; one claim settled during litigation. Although four claims shared a medical-necessity defense and four sought payment for the same type of treatment, the denials rested on different peer reviews and could require testimony from four doctors. The Appellate Term, Second Department, reversed the order denying severance and granted the insurer's motion to separate each assignor's claim. Different facts concerning the accidents, injuries, services and costs would make a single trial unwieldy and confusing.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50168(U)
Insurer prevailed
The provider's corporate officer affidavit failed to lay the business-records foundation needed to establish a prima facie case. The provider moved for summary judgment on assigned first-party no-fault claims. The officer called the annexed documents business records in conclusory terms but did not establish personal knowledge of the provider's practices and procedures sufficient to admit them. The Appellate Term, Second Department, affirmed denial of the provider's motion for failure to establish entitlement to summary judgment.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50166(U)
Insurer prevailed
The provider's officer failed to establish personal knowledge sufficient to admit the supporting documents as business records. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion in an assigned no-fault action. Although the provider argued that it had made a prima facie showing, its corporate officer's affidavit did not establish knowledge of the provider's practices and procedures adequate to lay the required evidentiary foundation. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court concluded that the provider failed to demonstrate entitlement to summary judgment.
Appellate Term, Second Department
Jan 31, 2007
2007 NY Slip Op 50167(U)
Insurer prevailed
A provider that retains a late answer without timely objection waives its untimeliness and cannot obtain a default judgment on that ground. The insurer served an untimely answer, and the provider obtained a default judgment in an assigned no-fault action. Under CPLR 2101 (f), the provider's failure to reject the answer waived the objection. Vacatur was warranted without a showing of a meritorious defense because the provider's representation that the insurer was in default was incorrect, with the court citing CPLR 5015 (a) (3). The Appellate Term, Second Department, modified the order to vacate the judgment. It denied as academic the request to compel acceptance because the answer was deemed accepted.
Appellate Term, First Department
Jan 30, 2007
2007 NY Slip Op 50138(U)
Provider prevailed
MVAIC's unsworn chiropractor's report was inadmissible and failed to raise a triable issue on medical necessity. The Appellate Term, First Department, reversed the order denying the provider's motion for partial summary judgment and granted the motion. The provider established mailing and receipt of the prescribed billing forms and that payment was overdue under Insurance Law § 5106 (a). MVAIC's report supporting its medical-necessity defense was not in admissible form under CPLR 2106 and had to be excluded from consideration. MVAIC therefore failed to rebut the provider's prima facie showing.
Appellate Term, Second Department
Jan 26, 2007
2007 NY Slip Op 50151(U)
Insurer prevailed
A provider's retention of a late answer without timely objection precludes a default judgment against the insurer. The Appellate Term, Second Department, modified the order to vacate the default judgment in this assigned no-fault action. Under CPLR 2101 (f), the provider waived its objection to the answer's untimeliness by failing to reject it. Its representation that the insurer was in default was therefore incorrect, and vacatur was warranted without a showing of a meritorious defense, citing CPLR 5015 (a) (3). Because the provider was deemed to have accepted the answer, the insurer's request to compel acceptance was denied as academic.
Appellate Term, Second Department
Jan 26, 2007
2007 NY Slip Op 50150(U)
Provider prevailed
The insurer failed to establish timely denial mailing, and affidavits first submitted in reply could not cure the deficiency. Its claims processor neither alleged actual mailing nor described a standard office mailing procedure in sufficient detail to create a presumption of mailing. Additional affidavits submitted in reply on the insurer's cross motion were properly disregarded and could not be considered on appeal. The insurer was therefore precluded from asserting its defense. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion; it expressly declined to review the provider's unchallenged prima facie showing.
Appellate Term, Second Department
Jan 26, 2007
2007 NY Slip Op 50152(U)
Insurer prevailed
The provider's corporate officer affidavit failed to establish a business-records foundation for the documents supporting summary judgment. The provider sought assigned first-party no-fault benefits. Its affidavit characterized the annexed documents as business records only in conclusory terms, without establishing the officer's personal knowledge of the provider's practices and procedures. The Appellate Term, Second Department, affirmed denial of the provider's motion because the provider failed to make a prima facie showing of entitlement to judgment.
Appellate Term, Second Department
Jan 12, 2007
2007 NY Slip Op 50179(U)
Insurer prevailed
The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal. The provider sought summary judgment on assigned no-fault claims, and the Civil Court denied the motion for inadequate proof of claim mailing. The corporate officer's affidavit also failed to establish personal knowledge of the provider's practices and procedures sufficient to admit the annexed documents, leaving claim submission unproved. The Appellate Term, Second Department, considered the insurer's new argument because Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. had resolved an appeal on a prima facie deficiency first raised on appeal despite objection. It affirmed denial of the provider's motion.
Appellate Term, Second Department
Jan 8, 2007
2007 NY Slip Op 50052(U)
Split result
Fraudulent licensing under 11 NYCRR 65-3.16 (a) (12) is a nonwaivable defense outside the 30-day preclusion rule. The insurer raised questions about who operated and controlled the provider, making fraudulent-incorporation discovery material and necessary under CPLR 3101. Under Mallela, fraudulently incorporated providers are ineligible for reimbursement. Because essential opposition facts might exist but could not yet be stated, the provider's summary judgment cross motion was premature under CPLR 3212 (f). The Appellate Term, Second Department, modified the order to deny that cross motion without prejudice to renewal after discovery. It upheld denial of the insurer's severance motion under CPLR 603 because the five claims shared potential incorporation issues and the insurer showed no prejudice to a substantial right.
Appellate Term, Second Department
Jan 3, 2007
2007 NY Slip Op 27109
Insurer prevailed
A provider assignee is subject to the interest toll under 11 NYCRR 65-3.9 (c) for failing to timely pursue a denied claim. The parties settled other claims but submitted the interest accrual date for untimely denied claims to the trial court. The Appellate Term, Second Department, reversed the order favoring the provider and remanded for recalculation. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (a), interest accrues 30 days after claim submission if benefits remain unpaid. An untimely denial does not prevent accrual, but failure to seek arbitration or sue within 30 days after receipt tolls interest until either step is taken. Reading the regulations together and deferring to the Superintendent's interpretation, the court held that "applicant" includes assignees, which cannot avoid that toll.
Appellate Term, Second Department
Jan 3, 2007
2007 NY Slip Op 50023(U)
Insurer prevailed
The provider's corporate officer affidavit lacked the personal-knowledge foundation necessary to admit its documents as business records. The provider moved for summary judgment on assigned first-party no-fault claims. The officer asserted in conclusory terms that the annexed documents were business records, and the insurer challenged the foundation. The affidavit did not establish knowledge of the provider's practices and procedures. The Appellate Term, Second Department, affirmed denial of the provider's motion for failure to make a prima facie showing.
Appellate Term, Second Department
Jan 2, 2007
2007 NY Slip Op 50011(U)
Split result
A timely but factually insufficient IME denial does not preserve a medical-necessity defense. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the provider summary judgment on two claims. The denials lacked factual grounds, and the insurer failed to supply the IME report within the untolled claim-determination period. Although 11 NYCRR 65-3.8 (b) (4) does not require a peer review report to be attached to the denial, the insurer must provide the factual basis and medical rationale in the denial or timely supply the report; IME denials follow the same rule. Dismissal of three claims was affirmed because unanswered Social Security number verification requests rendered them premature. The insurer's cross appeal was abandoned. Interest and attorney fees required remand under Insurance Law § 5106 (a); one justice dissented in part.
Appellate Term, Second Department
Jan 2, 2007
2007 NY Slip Op 50017(U)
Provider prevailed
The provider's summary judgment motion was granted because the insurer's affidavit did not raise a triable staged-accident coverage issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the claims representative's file-review affidavit insufficient. The affidavit attributed the insurer's belief of an intentional loss to the assignor's and driver's involvement in multiple accidents within a short period.
Appellate Term, Second Department
Jan 2, 2007
2007 NY Slip Op 50016(U)
Insurer prevailed
A billing provider cannot recover assigned no-fault benefits for services rendered by independent contractors. The provider sought summary judgment in an action to recover first-party no-fault benefits, but its claim form identified the treating professionals as independent contractors. Under 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services rendered by independent contractors rather than by the entity or its employees and cannot receive direct payment of assigned benefits. The Appellate Term, Second Department, affirmed the denial of the provider's motion.
Appellate Term, Second Department
Jan 2, 2007
2007 NY Slip Op 50014(U)
Insurer prevailed
The insurer established a timely verification request and denial, preserving a medical-necessity defense that raised a triable issue. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. Although the provider's papers did not establish mailing of its NF-3 form, the insurer's acknowledgment of receipt cured that defect. The claims examiner described an office mailing procedure sufficiently detailed to establish proper mailing of the verification request under 11 NYCRR 65-3.5 and the denial under 11 NYCRR 65-3.8 (a) (1). The insurer also established receipt of the requested information. Its medical-necessity denial was therefore timely, and the defense was not precluded.
Appellate Term, Second Department
Jan 2, 2007
2007 NY Slip Op 50012(U)
Insurer prevailed
The provider failed to establish a business-record foundation because its officer's affidavit did not show the required personal knowledge. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion in an assigned no-fault action. The corporate officer described the attached documents as business records only conclusorily. The affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to support their admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court concluded that the provider had not made a prima facie showing of entitlement to summary judgment.
Trial court, Second Department
Jan 5, 2007
2007 NY Slip Op 50224(U)
Provider prevailed
An insurer contesting medical necessity at trial must show that the services departed from generally accepted medical practices. The parties stipulated to the provider's prima facie case and a timely denial, leaving the necessity of cervical and lumbar MRIs as the sole issue. The insurer's expert offered a conclusory opinion, did not identify any departure from accepted practices, and acknowledged that additional medical records might have changed the opinion. The Civil Court, Kings County, gave the peer review minimal weight and found that the insurer failed to carry its burden. Judgment was directed for the provider with statutory interest and attorney fees.
Trial court, Second Department
Jan 3, 2007
2007 NY Slip Op 50241(U)
Provider prevailed
An insurer contesting medical necessity must show that the supplied equipment was inconsistent with generally accepted medical practices. The provider's prima facie case was stipulated, and medical necessity was the sole trial issue. The court described the claim-proof framework under Insurance Law § 5106 and 11 NYCRR 65.15. The insurer's expert had never prescribed the disputed supplies and could not say whether they were necessary or effective. The expert supplied no factual basis showing that the prescriptions departed from accepted standards or that the proposed alternative treatment met those standards. The Civil Court, Kings County, gave the peer review minimal weight, found that the insurer failed to carry its burden, and directed judgment for the provider; the burden never shifted back.
